Hi Ben
Another small question regarding the suspended employee

Customer Question

Hi BenAnother small question regarding the suspended employee on TUPEShould the employee have received copies of the new employers staff handbook and disciplinary procedure and guidelines when she was tuped. As far as I am aware none of the tuped staff have received them.Thanks

Hello, my name is Ben and it is my pleasure to assist you with your question today. When someone TUPE's over, they will retain their old term and conditions, so the new employer's handbook and disciplinary procedures would not be relevant as they would not apply to them - they would be bound by their old terms and conditions.

JACUSTOMER-ssjyf1r4- :

Hi

JACUSTOMER-ssjyf1r4- :

Thanks for coming back to me

JACUSTOMER-ssjyf1r4- :

Maybe I am just very confused

JACUSTOMER-ssjyf1r4- :

I am the suspended employee and was suspended last week Wed 18th June

JACUSTOMER-ssjyf1r4- :

I am a tuped employee as mentioned in previous chat.

JACUSTOMER-ssjyf1r4- :

I am now employed by the council but have transferred under tupe on my current terms and conditions from my previous employer.

JACUSTOMER-ssjyf1r4- :

I have no other staff handbook than the one from my original employer and the council have suspemded me and are using the council disciplinary procedure

JACUSTOMER-ssjyf1r4- :

I have no clue as to wether they can do this

JACUSTOMER-ssjyf1r4- :

Sorry if I did not make things clear last week

Ben Jones :

Hi, so when you transfer under TUPE you retain your old terms and conditions - everything contractual which applied with the old employer. You may have had a staff handbook with the old employer and assuming that it was contractually binding and part of your contract then it should have carried over to the new employer. However, if it was not contractually binding it would not be covered by TUPE and it would not transfer with you and the rest of your contract. In that event the employer could apply its own rules. In any event, using slightly different disciplinary rules is not going to be an issue - there are established principles, mainly governed by the ACAS Code of Conduct, which employers need to follow and as long as they try and stay within these, they would not be doing much wrong

JACUSTOMER-ssjyf1r4- :

How will i know if my terms and conditions and the staff handbook from the old employer were contractually binding?

JACUSTOMER-ssjyf1r4- :

The rules of the council are massively different than the ones of my previous employer

Ben Jones :

it will usually be mentioned in your contract - for example it may say that the staff handbook forms part of that contract, but it could easily be the case that it was not contractually binding and it was just there as a reference document that had no contractual effect

JACUSTOMER-ssjyf1r4- :

so basically the council could apply their disciplinary procedure and I couldn't argue against it?

Ben Jones :

depending on whether the old procedures were part f your contract or a contractually binding handbook

JACUSTOMER-ssjyf1r4- :

The chairman of the charity I was previously employed by has said they would not have dealt with the complaint in this manner

JACUSTOMER-ssjyf1r4- :

Would it be better for me to check the contract and handbook?

Ben Jones :

it is irrelevant how the old employer would have dealt with this in their own opinion, the key is what were your contractual rights because that is the only thing that would transfer with you to the new employer, so you must check whether it was specifically mentioned that the handbook was part of your old contract

JACUSTOMER-ssjyf1r4- :

ok i will check this

Ben Jones :

ok great

JACUSTOMER-ssjyf1r4- :

unfortunately my contracts says the following

JACUSTOMER-ssjyf1r4- :

as stated in the staff handbook the procedure set out in the disciplinary procedure is not contractual and the company reserves the right to change the disciplinary procedure if necessary or appropriate on giving reasonable notice of the changes

JACUSTOMER-ssjyf1r4- :

the only thing i can see is that there were no notice of any changes

Ben Jones :

ok it does appeart that the old rules were never contractual and were just there as a guideline, so they would not have transferred with you under TUPE when you moved to the new employer, which means they can apply their own disciplinary procedure now if necessary

JACUSTOMER-ssjyf1r4- :

it also says "by signing below you confirm..............................and you agree to comply with both the contractual and non contractual rules set out in the staff handbook"

JACUSTOMER-ssjyf1r4- :

do the new employer not have to give reasonable notice of the changes?

JACUSTOMER-ssjyf1r4- :

as stated in the contract of employement

Ben Jones :

not at all, because they were never bound by the original rules as they were not contractual - they stopped applying as soon as you transferred

JACUSTOMER-ssjyf1r4- :

but we were never told this as tuped employees and there are 9 other staff that are what i see as vulnerable now and are not aware of this

JACUSTOMER-ssjyf1r4- :

we were told that when we tuped we were still bound by our contract of employment from the previous employer

JACUSTOMER-ssjyf1r4- :

so basically if anything in the contract is non contractual the council can do what they want?

Ben Jones :

there is no need to be told of this - the law is the law and only contractual term,s transfer - you do not have to be told of what does not transfer or what actually transfers - it would all be done according to the legal rules, and whilst you were told that your contract of employment transfers, unfortunately the old disciplinary procedure was not part of it and as such it has not transferred

JACUSTOMER-ssjyf1r4- :

so therefore the tuped employers are left open to changes and don't have to be advised of them as they stopped applying as soon as they tuped?

Ben Jones :

yes correct - you get your automatic protection against changes to contractual terms and conditions, but anything non-contractual does not apply once you move

JACUSTOMER-ssjyf1r4- :

and by law employees don't have to be told this - am i correct?

Ben Jones :

correct - you should be told of any proposed changes to your contracts but not to anything that is not protected in the first place

JACUSTOMER-ssjyf1r4- :

so as employees we are wide open

JACUSTOMER-ssjyf1r4- :

to changes that were not contractual

Ben Jones :

well you still get your protection against changes to contractual terms and this should cover the most important parts of your old employment, but you will not get specific protection against non-contractual changes I'm afraid, it is just how the law works

JACUSTOMER-ssjyf1r4- :

ok now i understand

JACUSTOMER-ssjyf1r4- :

and as employees we didn't need to receive the new employees handbook or disciplinary procedure?

Ben Jones :

it would have been good practice to give you that before relying on it but it does not mean they cannot rely on it if they did not give you a copy - it would have applied anyway so as soon as you knew that it would be relied on you could have asked to see it

JACUSTOMER-ssjyf1r4- :

thats what i did on thursday i asked for a copy to be emailed to me as they did not give me any paperwork relating to the suspension at the meeting (wed)

Ben Jones :

they should give you a copy but it does not mean that if they have not, that the whole procedure is unfair and cannot be continued

JACUSTOMER-ssjyf1r4- :

but it shows how as tuped employees we are not protected by our contract of employment and how we did't know this

Ben Jones :

ok but we go back to the original point - you are not protected in this case because your old disciplinary procedure was never part of your contract sop you cannot expect the new employer to use it - it stopped applying the moment you transferred

JACUSTOMER-ssjyf1r4- :

yes thats true and we were all lead to believe when we were tuped that we were protected by our existing contract and now it shows that we are not

Ben Jones :

you are though, but the key is that this particular part is not part of your contract

JACUSTOMER-ssjyf1r4- :

i realise that and because this part is not contractual they can use their disciplinary procedure. None of the other tuped employees know that if their contract of employment has non contractual parts they are not covered by them under the tupe and I am sure they would appreciate knowing this now you have cleared things up

Ben Jones :

yes that is the law as it stands I'm afraid - unfortunately it does not mean that the employers would have to sit down with you and go and explain bit by bit what your legal rights are because that is not what they are there for - the law is the law and if you wanted to know exactly what your rights are then it would generally be up to you to find that out for yourself, hence why legal advice exists if you need it

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